Latest news with #COVID-vaccine
Atlantic
6 days ago
- Health
- Atlantic
COVID Revenge Is Supercharging the Anti-Vaccine Agenda
Four and a half years ago, fresh off the success of Operation Warp Speed, mRNA vaccines were widely considered—as President Donald Trump said in December 2020 —a 'medical miracle.' Last week, the United States government decidedly reversed that stance when Secretary of Health and Human Services Robert F. Kennedy Jr. canceled nearly half a billion dollars' worth of grants and contracts for mRNA-vaccine research. With Kennedy leading HHS, this about-face is easy to parse as yet another anti-vaccine move. But the assault on mRNA is also proof of another kind of animus: the COVID-revenge campaign that top officials in this administration have been pursuing for months, attacking the policies, technologies, and people that defined the U.S.'s pandemic response. As the immediacy of the COVID crisis receded, public anger about the American response to it took deeper root—perhaps most prominently among some critics who are now Trump appointees. That acrimony has become an essential tool in Kennedy's efforts to undermine vaccines. 'It is leverage,' Dorit Reiss, a vaccine-law expert at UC Law San Francisco, told me. 'It is a way to justify doing things that he wouldn't be able to get away with otherwise.' COVID revenge has defined the second Trump administration's health policy from the beginning. Kennedy and his allies have ousted prominent HHS officials who played key roles in the development of COVID policy, as well as scientists at the National Institutes of Health, including close colleagues of Anthony Fauci, the former director of the National Institute of Allergy and Infectious Diseases (and, according to Trump, an idiot and a 'disaster'). In June, Kennedy dismissed every member of the CDC Advisory Committee on Immunization Practices (ACIP), which has helped shape COVID-vaccine recommendations, and handpicked replacements for them. HHS and ACIP are now stacked with COVID contrarians who have repeatedly criticized COVID policies and minimized the benefits of vaccines. Under pressure from Trump officials, the NIH has terminated funding for hundreds of COVID-related grants. The president and his appointees have espoused the highly disputed notion that COVID began as a leak from 'an unsafe lab in Wuhan, China'—and cited the NIH's funding of related research as a reason to restrict federal agencies' independent grant-awarding powers. This administration is rapidly rewriting the narrative of COVID vaccines as well. In an early executive order, Trump called for an end to COVID-19-vaccine mandates in schools, even though few remained; earlier this month, HHS rolled back a Biden-era policy that financially rewarded hospitals for reporting staff-vaccination rates, describing the policy as ' coercive.' The FDA has made it harder for manufacturers to bring new COVID shots to market, narrowed who can get the Novavax shot, and approved the Moderna COVID-19 vaccines for only a limited group of children, over the objections of agency experts. For its part, the CDC softened its COVID-shot guidance for pregnant people and children, after Kennedy—who has described the shots as 'the deadliest vaccine ever made'—tried to unilaterally remove it. Experts told me they fear that what access remains to the shots for children and adults could still be abolished; so could COVID-vaccine manufacturers' current protection from liability. (Andrew Nixon, an HHS spokesperson, said in an email that the department would not comment on potential regulatory changes.) The latest assault against mRNA vaccines, experts told me, is difficult to disentangle from the administration's pushback on COVID shots—which, because of the pandemic, the public now views as synonymous with the technology, Jennifer Nuzzo, the director of the Pandemic Center at Brown University School of Public Health, told me. Kennedy justified the mRNA cuts by suggesting—in contrast to a wealth of evidence—that the vaccines' risks outweigh their benefits, and that they 'fail to protect effectively against upper respiratory infections like COVID and flu.' And he insisted, without proof, that mRNA vaccines prolong pandemics. Meanwhile, NIH Director Jay Bhattacharya argued that the cancellations were driven by a lack of public trust in the technology itself. In May, the Trump administration also pulled more than $700 million in funds from Moderna that had initially been awarded to develop mRNA-based flu vaccines. The mRNA funding terminated so far came from HHS's Biomedical Advanced Research and Development Authority; multiple NIH officials told me that they anticipate that similar grant cuts will follow at their agency. (In an email, Kush Desai, a spokesperson for the White House, defended the administration's decision as a way to prioritize funding with 'the most untapped potential'; Nixon echoed that sentiment, casting the decision as 'a necessary pivot in how we steward public health innovations in vaccines.') COVID is a politically convenient entryway to broader anti-vaccine sentiment. COVID shots are among the U.S.'s most politicized vaccines, and many Republicans have, since the outbreak's early days, been skeptical of COVID-mitigation policies. Although most Americans remain supportive of vaccines on the whole, most Republicans—and many Democrats—say they're no longer keen on getting more COVID shots. 'People trust the COVID vaccines less,' Nuzzo told me, which makes it easy for the administration's vaccine opponents to use attacks on those vaccines as purchase for broader assaults. For all their COVID-centric hype, mRNA vaccines have long been under development for many unrelated diseases. And experts now worry that the blockades currently in place for certain types of mRNA vaccines could soon extend to other, similar technologies, including mRNA-based therapies in development for cancer and genetic disease, which might not make it through the approval process at Kennedy's FDA. (Nixon said HHS would continue to invest in mRNA research for cancer and other complex diseases.) Casting doubt on COVID shots makes other vaccines that have been vetted in the same way—and found to be safe and effective, based on high-quality data—look dubious. 'Once you establish that it's okay to override something for COVID,' Reiss told me, 'it's much easier to say, 'Well, now we're going to unrecommend MMR.'' (Kennedy's ACIP plans to review the entire childhood-immunization schedule and assess its cumulative effects.) Plenty of other avenues remain for Kennedy to play on COVID discontent—fear of the shots' side effects, distaste for mandates, declining trust in public health and medical experts —to pull back the government's support for vaccination. He has announced, for instance, his intention to reform the Vaccine Injury Compensation Program, which helps protect manufacturers from lawsuits over illegitimate claims about a vaccine's health effects, and his plans to find 'ways to enlarge that program so that COVID-vaccine-injured people can be compensated.' Some of the experts I spoke with fear that the FDA's Vaccines and Related Biological Products Advisory Committee—the agency's rough equivalent of ACIP—could be remade in Kennedy's vision. The administration has also been very willing to rescind federal funding from universities in order to forward its own ideas: Kennedy could, perhaps, threaten to withhold money from universities that require any vaccines for students. Kennedy has also insisted that 'we need to stop trusting the experts'—that Americans, for instance, shouldn't have been discouraged from doing their own research during the pandemic. He could use COVID as an excuse to make that maxim Americans' reality: Many public-health and infectious-disease-focused professional societies rely on at least some degree of federal funding, Nirav D. Shah, a former principal deputy director of the CDC, told me. Stripping those resources would be 'a way to cut their legs off'—or, at the very least, would further delegitimize those expert bodies in the public eye. Kennedy has already barred representatives from professional societies, including the American Academy of Pediatrics and the Infectious Diseases Society of America, from participating in ACIP subcommittees after those two societies and others collectively sued HHS over its shifts in COVID policy. The public fight between medicine and government is now accelerating the nation onto a path where advice diverges over not just COVID shots but vaccines generally. (When asked about how COVID resentment was guiding the administration's decisions, Desai said that the media had politicized science to push for pandemic-era mandates and that The Atlantic 'continues to fundamentally misunderstand how the Trump administration is reversing this COVID era politicization of HHS.') The coronavirus pandemic began during the first Trump presidency; now its legacy is being exploited by a second one. Had the pandemic never happened, Kennedy would likely still be attacking vaccines, maybe even from the same position of power he currently commands. But without the lightning rod of COVID, Kennedy's attacks would be less effective. Already, one clear consequence of the Trump administration's anti-COVID campaign is that it will leave the nation less knowledgeable about and less prepared against all infectious diseases, Gregory Poland, a vaccinologist and the president of Atria Research Institute, told me. That might be the Trump administration's ultimate act of revenge. No matter who is in charge when the U.S. meets its next crisis, those leaders may be forced into a corner carved out by Trump and Kennedy—one from which the country must fight disease without adequate vaccination, research, or public-health expertise. This current administration will have left the nation with few other options.
Atlantic
16-07-2025
- Health
- Atlantic
The Conversations Doctors Are Having About Vaccination Now
For years, studies have pointed to one especially powerful influence over whether a person will get a vaccine: a clear recommendation from their doctor. Throughout most of her career, Nola Ernest, a pediatrician in rural southeastern Alabama, could reassure families who were hesitating to vaccinate their kids—in many cases by explaining that she had enthusiastically opted into the same shots for her own sons. In the past few months, though, she's spoken with several families who, at her recommendation, had previously immunized all of their older kids—and yet are now adamant about not vaccinating their newborn. 'I reassure them that I am still the same pediatrician,' Ernest told me. 'They say, 'We still trust you. We just think a lot of the things have been pushed on us for a long time that were not actually necessary, or were harmful.'' Until recently, doubt about vaccines might have been seeded mainly by cautions from friends and family, or by unreliable information online. Now, though, doubt about vaccines has the weight of the federal government behind it. Health and Human Services Secretary Robert F. Kennedy Jr., a longtime anti-vaccine activist, has been telling the public exactly what Ernest's patients told her: Unnecessary, unsafe vaccines have been forced on you. A recent KFF tracking survey found that about three-fourths of Republicans trust their physician to provide reliable information about vaccines—but about three-fourths trust President Donald Trump and Kennedy to do so as well. As those sources start to contradict one another, patients' trust in doctors—which was already eroding —is being pitted directly against trust in government. And in doctors' offices across the country, the Trump administration's position is bending conversations about vaccinations—in some cases toward hesitancy, and in others toward haste as people fear that shots will soon be harder to get. Government advisers and doctors have diverged in their vaccination advice before. In 1989, for instance, the CDC's Advisory Committee on Immunization Practices, or ACIP, recommended that children receive their second dose of the measles-mumps-rubella vaccine between the ages of 4 and 6, when kids are due for other vaccines; that same year, the American Academy of Pediatrics, following the logic that outbreaks tended to happen in middle school or high school, advised age 11 or 12. The conflicting guidance created enough uncertainty for health professionals and patients that ACIP and the AAP pledged in 1993 to sync their vaccine advice, and in 1995 published the country's first officially harmonized immunization schedule. The current vaccine schism between the government and medical professionals, though, is different in kind—not a disagreement over maximizing uptake of data-backed vaccines, but a fight over what evidence to even consider. In May, Kennedy bypassed the CDC—his own department's agency—and tried to unilaterally remove COVID-vaccine recommendations for children and pregnant people, without providing any evidence of harm. Weeks later, he dismissed all 17 members of ACIP and replaced them with researchers who largely lack expertise in vaccines, including multiple people who are openly antagonistic toward them. At its first meeting last month, that reconstituted group voted to remove recommendations for flu shots, following the advice of an anti-vaccine activist invited to speak at the meeting. (When reached over email for comment, an HHS spokesperson wrote that 'HHS continues to support the CDC and the Advisory Committee on Immunization Practices (ACIP) in advancing evidence-based immunization schedules' and that 'the Secretary stands by his CDC reforms.') These upheavals have prompted a very public fight. Last week, several professional societies—including the AAP, the American College of Physicians, and the Infectious Diseases Society of America—sued Kennedy and HHS, calling recent shifts in vaccine policy 'capricious' and arguing that the department's new leaders were putting the nation's health at risk. The AAP also boycotted ACIP's most recent meeting. Shortly after, Martin Kulldorff, the new ACIP chair, criticized the AAP's loyalty to the unamended immunization schedule as 'unscientific.' The government's alterations to vaccine guidance so far have been relatively limited. But Kennedy and many of his allies have criticized the immunization schedule, especially for kids, or advocated for paring it back further. And according to nearly a dozen doctors I spoke with, plenty of patients have already picked up on the spirit of these changes: that they should put less stock in vaccination than the government had previously called for. 'Families have really been shaken in their confidence in what we've been telling them all this time,' Molly O'Shea, a pediatrician in Michigan, told me. 'We're already seeing in my practices a decrease in people taking vaccines on schedule.' In the past, when O'Shea asked, her patients would usually explain their rationale for distrusting a vaccine—something they had read online, a rumor they had heard from a relative. Now, though, many of them don't want to discuss their choice at all, a response she's rarely encountered in her three decades of practicing medicine. In some cases, families are echoing Kennedy's concerns, and pressing their doctors to directly address them. Like many pediatricians, O'Shea requires that her patients follow the recommended childhood-immunization schedule to continue to be seen at her practice; at one of her offices, several families have asked recently why she's maintaining the policy even though Kennedy has described vaccination as a personal decision. Braveen Ragunanthan, a pediatrician in a rural part of the Mississippi Delta, told me that a patient recently expressed concerns about the immunizations recommended for his six-month-old daughter after hearing something on the news. The patient asked, 'All this time, has there been something wrong with the shots?' Ragunanthan told me. Ernest, the pediatrician in Alabama, told me that one family of longtime patients, when declining to vaccinate their newborn, cited the debunked notion that vaccines cause autism, an idea that Kennedy has repeatedly endorsed. Several of Kennedy's other mistruths about vaccines, including that certain shots contain 'aborted-fetus debris' and that the hepatitis B vaccine has been linked to autism, have come up as well. Some of the families she sees have also cast federal vaccine regulators and pharmaceutical companies as untrustworthy—echoing Kennedy's narrative that the U.S. approach to vaccine policy has been corrupt and is bent on pushing dangerous shots for industry profit. Families who remain eager to vaccinate are also taking seriously Kennedy's rhetoric—and the implication that a government that endorses fewer shots will ultimately depress their availability. Gretchen LaSalle, a family-medicine physician in Spokane, Washington, told me that some of her patients have started asking whether they'll be able to get their fall COVID and flu shots; Jennifer Hamilton, a family-medicine physician in Philadelphia, said she's heard similar concerns from older adults about shingles and pneumococcal vaccines. Ragunanthan also recently vaccinated a patient against HPV at age 9, the earliest age of eligibility and two years before most pediatricians routinely offer the first dose, at her parents' request. 'They said, 'I don't know if they're going to try to take it away,'' he said. Several doctors told me that they're committed to following whatever their professional society—be it the AAP, the American Academy of Family Physicians, or another organization—recommends. But they also acknowledged that doing so may not be practical. Public schools generally look to the national immunization schedule to determine which vaccines to mandate for entry, and when; the government's official stance on vaccines can also influence the price and availability of shots, and determine what insurers will cover. ACIP also decides which vaccines are covered by the Vaccines for Children Program, which ensures access for kids whose families can't afford shots. Certain patients might opt to pay for shots out of pocket; Alanna Levine, a pediatrician in New York, told me that her practice intends to seek grant funding that might help it continue to offer vaccines to all of its patients, regardless of insurance coverage. But some vaccines can cost as much as hundreds of dollars per dose —a price that many families won't be able to, or want to, pay and that many doctors' offices won't want to shoulder to keep shots in stock. 'We would definitely lose considerable money if we bought vaccines, paid to store the vaccines, paid to administer the vaccines, and then families couldn't afford to pay us,' Ernest told me. As much as doctors want to continue to 'follow the science'—as nearly all of them put it to me—the power of the government may force their hand. 'I can recommend something, but if it's not paid for, I know my patients aren't going to get it,' Hamilton told me. Several doctors told me that they hope insurers end up following the recommendations of professional societies. But in the absence of official harmonization with the government, professional societies might revert to developing their own schedule. Even if they were to agree with one another, the discrepancy between official medical advice and official governmental advice casts doubt on the scientific consensus that vaccines are safe and effective. Sian Jones-Jobst, a pediatrician in Lincoln, Nebraska, told me that some of her patients' visits are now so dominated by combatting vaccine hesitancy that she runs out of time to discuss other aspects of their health. Uncertainty also makes the work of caring for patients inherently more challenging: Before, doctors trusted that they could simply follow the recommended schedule to keep their patients up-to-date on vaccines, Jason Terk, a pediatrician in Keller, Texas, told me. Now, though, divergence is the norm.
Yahoo
16-05-2025
- Politics
- Yahoo
The Birthright Citizenship Case Isn't Really About Birthright Citizenship
Yesterday, during an oral argument spanning nearly two and a half hours, the Supreme Court justices grilled the newly installed Solicitor General D. John Sauer over the Trump administration's request that it be allowed to enforce a flagrantly unconstitutional executive order ending birthright citizenship. Sauer repeatedly refused to say how the case could be swiftly resolved. Instead, he suggested that President Donald Trump may wish to enforce the order to the hilt unless and until the justices themselves—no one else—tell him to stop. Still, Sauer may walk away with a narrow win. The central dispute yesterday morning was not about the birthright-citizenship order itself. Instead, it was about the relief that plaintiffs ought to get assuming that the order is unconstitutional. It's a procedural question. At times, that lent the proceedings a weirdly artificial air. President Trump is moving to deny citizenship to countless newborns and we're fighting about whether courts can say no? Well, yes. And for good reason. The argument yesterday was about the power of lone federal-court judges to enter what are called 'universal' or 'nationwide' injunctions. These injunctions prevent the government from enforcing a policy not just on the plaintiffs who filed a given suit, but on anyone and everyone in the United States. As recently as the administration of President George W. Bush, such universal injunctions were very rare. Today, they are a more or less standard judicial response to perceived presidential overreach. Universal injunctions have a distinctly partisan cast. When the president is a Democrat, they are the tools of right-wing judges. During Joe Biden's presidency, for example, judges in Texas entered universal injunctions against COVID-vaccine mandates, the cancellation of $430 billion in student-loan payments, and expanded protections for transgender students. Democrats cried foul play. Under Republican presidents, the valence shifts. Then, it's disproportionately liberal judges who deploy universal injunctions. The second Trump administration has already been hit with a couple dozen nationwide injunctions against its actions, including its ban on transgender service members, its cuts to university research funding, and its deportation of gang members under the Alien Enemies Act. And also, of course, the birthright-citizenship executive order. Now it's Republicans who are outraged. 'STOP NATIONWIDE INJUNCTIONS NOW, BEFORE IT IS TOO LATE,' Trump wrote on Truth Social. 'If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble!' [David W. Blight: Birthright citizenship is a sacred guarantee] I don't say this often about Trump's Truth Social posts, but he has a point. As the University of Chicago law professor Samuel Bray and I argued in this magazine back in 2018, universal injunctions can't be squared with the traditional judicial role of the courts, which is to resolve disputes between parties, not to protect theoretical parties who aren't in court at all. I elaborated on the point in testimony I gave to the Senate Judiciary Committee in 2020: They enable opportunistic behavior by politically motivated litigants and judges, short-circuit a process in which multiple judges address hard legal questions, and inhibit the federal government's ability to do its work. By inflating the judicial role, they also reinforce the sense that we ought to look to the courts for salvation from our political problems—a view that is difficult to square with basic principles of democratic self-governance. Not long after Trump signed the birthright-citizenship order, about half the states and some nonprofit groups sued. Very quickly, several judges blocked the order from taking effect. The judges' rationale was straightforward: The order is illegal, and wildly so. It contradicts the text of the Fourteenth Amendment, which says that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' And it violates case law from the Supreme Court, too, including an 1898 decision called Wong Kim Ark. The judges were appalled: 'I've been on the bench for over four decades,' one wrote. 'I can't remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order.' For all of the judges who heard the challenge, the question of the order's legality was not hard. The problem is determining what they can do about it. Three blocked it nationwide. One New Hampshire judge blocked it only in New Hampshire. Sauer wants the Supreme Court to adopt a categorical rule that universal injunctions—or, more precisely, injunctions where relief extends to non-parties to the case—are never okay. But he had trouble answering a series of questions about speed. Justice Elena Kagan, for example, acknowledged that 'there are all kinds of abuses of nationwide injunctions.' But without a nationwide injunction, she asked, how could this case get quickly resolved for everyone whose citizenship might be called into question during the pendency of litigation? 'If one thinks that it's quite clear that the EO is illegal, how does one get to that result, in what timeframe, on your set of rules, without the possibility of a nationwide injunction?' [Nicholas Bagley and Samuel Bray: Judges shouldn't have the power to halt laws nationwide] Sauer said that the plaintiffs could try to certify a class action. Fine, Kagan said. Would he stipulate that a class action would be appropriate in this case? Sauer said no, and insisted on preserving the right to challenge class certification if he won on his core argument. Justice Amy Coney Barrett was incredulous at Sauer's refusal to make a tactical concession: 'Are you really going to answer Justice Kagan by saying that there's no way to do this expeditiously?' Kagan went further. Assume, she said, that the Second Circuit—the court of appeals covering New York, Connecticut, and Vermont—held that the citizenship order was unconstitutional. Would the Trump administration follow that ruling, even in the absence of an injunction, in those three states? Again, Sauer refused to commit. 'Generally, our practice is to respect circuit precedent within the circuit, but there are exceptions to that.' He reserved the right to apply a court of appeals decision only to the parties who filed suit. Now it was Kagan's turn to be incredulous. 'You're not willing to commit to abiding by the Second Circuit's precedent. Suppose that there's a single person who brings a suit and it gets all the way up to us after three or four or five years.' Then the Supreme Court rules in that person's favor and holds that 'your EO is illegal. Is that only going to bind the one guy who brought the suit?' On this, Sauer finally relented: 'That would be a nationwide precedent that the government would respect.' Kagan was not mollified. 'For four years, there are going to be, like, an untold number of people who, according to all the law that this Court has ever made, ought to be citizens who are not being treated as such.' Sauer had no good answer to that one. The colloquy, and a similar follow-up with Barrett, was fascinating not only for what it said about this case, but for what it indicates about the Trump administration's attitude toward the courts. At least for the administration's top priorities, Sauer suggested that the executive branch would pay much less heed to lower courts than previous administrations—and that it would take a ruling from the United States Supreme Court to prevent it from breaking the law. The plaintiffs also faced tough questioning. Their lawyers—one for the state of New Jersey, representing a group of blue states, and the other on behalf of two civil-rights groups—both acknowledged that universal injunctions should be rare. But they had two arguments for why injunctions were acceptable in this case. [Yasmeen Serhan and Uri Friedman: America isn't the 'only country' with birthright citizenship] First, the plaintiffs said that they needed a broad injunction to give them complete relief for their injuries. By way of analogy, think of a lawsuit against a power plant that's spewing pollutants. If a plaintiff wins, she might secure an injunction to stop the plant from operating. That would incidentally benefit lots of people who live near the power plant, even if they aren't parties to the case. The same logic applied here, the plaintiffs said. New Jersey's lawyer, Jeremy Feigenbaum, argued that the executive order would inflict injury on the states because it would require them to abide by burdensome and confusing rules governing citizenship when administering a range of state programs. Confining the injunction to the plaintiff states wouldn't solve that problem. Why? Because people move. Feigenbaum used the example of someone moving from Philadelphia to Camden and back again: 'It's a very porous part of the country.' Does citizenship toggle on and off? How is a state supposed to manage that uncertainty? Only an injunction that extended to all states could protect New Jersey from 'that sort of chaos on the ground.' Some of the justices seemed receptive to the argument, especially Barrett. Chief Justice John Roberts, too, used his opening question to emphasize that giving a plaintiff complete relief will sometimes require a pretty sweeping injunction. That may be enough to sustain the injunction here. If that's the argument, however, then this is not a true universal injunction. Universal injunctions are those that are not necessary to provide complete relief to the plaintiffs, but are needed to protect non-plaintiffs. Here, New Jersey says that it and the other blue states aren't trying to protect the non-plaintiff red states. They're trying to protect themselves, and they need an order that covers the whole country to get that relief. Which takes us to the plaintiffs' second argument. Arguing for two civil-rights groups, Kelsi Brown Corkran said that true universal injunctions ought to be available in narrow circumstances, in particular when a government policy infringed on 'fundamental rights' and when there were doubts about 'the legal and practical availability of relief to similarly situated parties.' (Corkran and I are old friends, and I participated in an early moot court for her in this case.) She offered the example of when the Trump administration made a midnight attempt to deport Tren de Aragua members to El Salvador. [Amanda Frost: The coming assault on birthright citizenship] Justices Sonia Sotomayor and Ketanji Brown Jackson were both attracted to an approach along those lines. But several other justices, including Justice Samuel Alito, were skeptical. 'All Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want. Now, on a multimember appellate court, that's restrained by one's colleagues. But the trial judge sitting in the trial judge's courtroom is the monarch of that realm,' Alito said. It's tempting, Alito continued, for him or her to say, 'This is unlawful and I'm going to enjoin it and I'm so convinced I'm right so I'm not going to stay the injunction.' Kagan and Justice Neil Gorsuch both voiced similar concerns. What's likely to happen? As always, predicting Supreme Court decisions from oral argument is treacherous. But the swing justices on the Supreme Court—here, Justices Brett Kavanaugh and Barrett—both signaled that they're looking to rein in universal injunctions. The only question is how hard they'll yank. Sauer did his case no favors by refusing to give an inch on questions pertaining to class certification and the administration's willingness to abide by circuit precedent. Nonetheless, Kavanaugh and Barrett were sympathetic to Sauer's argument that the proper way to get classwide relief is to certify a class, not by pushing for a universal injunction. If they hold to that view, Sauer may get what he asked for: a categorical bar on universal injunctions. That would be a big win for the executive branch. At the same time, some of the justices suggested that supplying complete relief in this case might require an unusually broad injunction. In particular, Barrett hinted that the right approach might be to send the case back down so that a judge could decide whether providing complete relief to New Jersey and the other blue states might support an injunction that covered the whole country. Alternatively, or in addition, the Court may clarify that plaintiffs can secure preliminary relief on behalf of a class even before that class is formally certified. If that were to happen, I'd expect the plaintiffs to promptly get relief on behalf of a very broad putative class. In other words, the Trump administration may win the fight over universal injunctions—but lose the fight over this injunction. That, of course, would leave unresolved the constitutionality of the birthright-citizenship order. It's hard to say how long it will take before that question is squarely presented. Much depends on what the Supreme Court says and what the lower courts do. In the meantime, however, my best guess is that the order will never be allowed to take effect. What will the Supreme Court say when it eventually rules on the merits? On that, it was hard to read the justices as anything but deeply skeptical of the Trump administration's argument. Barring truly extraordinary events, the Court will one day hold that the birthright-citizenship order is unequivocally unconstitutional. The only question is when its obituary will be written. Article originally published at The Atlantic
Atlantic
16-05-2025
- Politics
- Atlantic
The Birthright Citizenship Case Isn't Really About Birthright Citizenship
Yesterday, during an oral argument spanning nearly two and a half hours, the Supreme Court justices grilled the newly installed Solicitor General D. John Sauer over the Trump administration's request that it be allowed to enforce a flagrantly unconstitutional executive order ending birthright citizenship. Sauer repeatedly refused to say how the case could be swiftly resolved. Instead, he suggested that President Donald Trump may wish to enforce the order to the hilt unless and until the justices themselves—no one else—tell him to stop. Still, Sauer may walk away with a narrow win. The central dispute yesterday morning was not about the birthright-citizenship order itself. Instead, it was about the relief that plaintiffs ought to get assuming that the order is unconstitutional. It's a procedural question. At times, that lent the proceedings a weirdly artificial air. President Trump is moving to deny citizenship to countless newborns and we're fighting about whether courts can say no? Well, yes. And for good reason. The argument yesterday was about the power of lone federal-court judges to enter what are called 'universal' or 'nationwide' injunctions. These injunctions prevent the government from enforcing a policy not just on the plaintiffs who filed a given suit, but on anyone and everyone in the United States. As recently as the administration of President George W. Bush, such universal injunctions were very rare. Today, they are a more or less standard judicial response to perceived presidential overreach. Universal injunctions have a distinctly partisan cast. When the president is a Democrat, they are the tools of right-wing judges. During Joe Biden's presidency, for example, judges in Texas entered universal injunctions against COVID-vaccine mandates, the cancellation of $430 billion in student-loan payments, and expanded protections for transgender students. Democrats cried foul play. Under Republican presidents, the valence shifts. Then, it's disproportionately liberal judges who deploy universal injunctions. The second Trump administration has already been hit with a couple dozen nationwide injunctions against its actions, including its ban on transgender service members, its cuts to university research funding, and its deportation of gang members under the Alien Enemies Act. And also, of course, the birthright-citizenship executive order. Now it's Republicans who are outraged. 'STOP NATIONWIDE INJUNCTIONS NOW, BEFORE IT IS TOO LATE,' Trump wrote on Truth Social. 'If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble!' David W. Blight: Birthright citizenship is a sacred guarantee I don't say this often about Trump's Truth Social posts, but he has a point. As the University of Chicago law professor Samuel Bray and I argued in this magazine back in 2018, universal injunctions can't be squared with the traditional judicial role of the courts, which is to resolve disputes between parties, not to protect theoretical parties who aren't in court at all. I elaborated on the point in testimony I gave to the Senate Judiciary Committee in 2020: They enable opportunistic behavior by politically motivated litigants and judges, short-circuit a process in which multiple judges address hard legal questions, and inhibit the federal government's ability to do its work. By inflating the judicial role, they also reinforce the sense that we ought to look to the courts for salvation from our political problems—a view that is difficult to square with basic principles of democratic self-governance. Not long after Trump signed the birthright-citizenship order, about half the states and some nonprofit groups sued. Very quickly, several judges blocked the order from taking effect. The judges' rationale was straightforward: The order is illegal, and wildly so. It contradicts the text of the Fourteenth Amendment, which says that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' And it violates case law from the Supreme Court, too, including an 1898 decision called Wong Kim Ark. The judges were appalled: 'I've been on the bench for over four decades,' one wrote. 'I can't remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order.' For all of the judges who heard the challenge, the question of the order's legality was not hard. The problem is determining what they can do about it. Three blocked it nationwide. One New Hampshire judge blocked it only in New Hampshire. Sauer wants the Supreme Court to adopt a categorical rule that universal injunctions—or, more precisely, injunctions where relief extends to non-parties to the case—are never okay. But he had trouble answering a series of questions about speed. Justice Elena Kagan, for example, acknowledged that 'there are all kinds of abuses of nationwide injunctions.' But without a nationwide injunction, she asked, how could this case get quickly resolved for everyone whose citizenship might be called into question during the pendency of litigation? 'If one thinks that it's quite clear that the EO is illegal, how does one get to that result, in what timeframe, on your set of rules, without the possibility of a nationwide injunction?' Nicholas Bagley and Samuel Bray: Judges shouldn't have the power to halt laws nationwide Sauer said that the plaintiffs could try to certify a class action. Fine, Kagan said. Would he stipulate that a class action would be appropriate in this case? Sauer said no, and insisted on preserving the right to challenge class certification if he won on his core argument. Justice Amy Coney Barrett was incredulous at Sauer's refusal to make a tactical concession: 'Are you really going to answer Justice Kagan by saying that there's no way to do this expeditiously?' Kagan went further. Assume, she said, that the Second Circuit—the court of appeals covering New York, Connecticut, and Vermont—held that the citizenship order was unconstitutional. Would the Trump administration follow that ruling, even in the absence of an injunction, in those three states? Again, Sauer refused to commit. 'Generally, our practice is to respect circuit precedent within the circuit, but there are exceptions to that.' He reserved the right to apply a court of appeals decision only to the parties who filed suit. Now it was Kagan's turn to be incredulous. 'You're not willing to commit to abiding by the Second Circuit's precedent. Suppose that there's a single person who brings a suit and it gets all the way up to us after three or four or five years.' Then the Supreme Court rules in that person's favor and holds that 'your EO is illegal. Is that only going to bind the one guy who brought the suit?' On this, Sauer finally relented: 'That would be a nationwide precedent that the government would respect.' Kagan was not mollified. 'For four years, there are going to be, like, an untold number of people who, according to all the law that this Court has ever made, ought to be citizens who are not being treated as such.' Sauer had no good answer to that one. The colloquy, and a similar follow-up with Barrett, was fascinating not only for what it said about this case, but for what it indicates about the Trump administration's attitude toward the courts. At least for the administration's top priorities, Sauer suggested that the executive branch would pay much less heed to lower courts than previous administrations—and that it would take a ruling from the United States Supreme Court to prevent it from breaking the law. The plaintiffs also faced tough questioning. Their lawyers—one for the state of New Jersey, representing a group of blue states, and the other on behalf of two civil-rights groups—both acknowledged that universal injunctions should be rare. But they had two arguments for why injunctions were acceptable in this case. Yasmeen Serhan and Uri Friedman: America isn't the 'only country' with birthright citizenship First, the plaintiffs said that they needed a broad injunction to give them complete relief for their injuries. By way of analogy, think of a lawsuit against a power plant that's spewing pollutants. If a plaintiff wins, she might secure an injunction to stop the plant from operating. That would incidentally benefit lots of people who live near the power plant, even if they aren't parties to the case. The same logic applied here, the plaintiffs said. New Jersey's lawyer, Jeremy Feigenbaum, argued that the executive order would inflict injury on the states because it would require them to abide by burdensome and confusing rules governing citizenship when administering a range of state programs. Confining the injunction to the plaintiff states wouldn't solve that problem. Why? Because people move. Feigenbaum used the example of someone moving from Philadelphia to Camden and back again: 'It's a very porous part of the country.' Does citizenship toggle on and off? How is a state supposed to manage that uncertainty? Only an injunction that extended to all states could protect New Jersey from 'that sort of chaos on the ground.' Some of the justices seemed receptive to the argument, especially Barrett. Chief Justice John Roberts, too, used his opening question to emphasize that giving a plaintiff complete relief will sometimes require a pretty sweeping injunction. That may be enough to sustain the injunction here. If that's the argument, however, then this is not a true universal injunction. Universal injunctions are those that are not necessary to provide complete relief to the plaintiffs, but are needed to protect non-plaintiffs. Here, New Jersey says that it and the other blue states aren't trying to protect the non-plaintiff red states. They're trying to protect themselves, and they need an order that covers the whole country to get that relief. Which takes us to the plaintiffs' second argument. Arguing for two civil-rights groups, Kelsi Brown Corkran said that true universal injunctions ought to be available in narrow circumstances, in particular when a government policy infringed on 'fundamental rights' and when there were doubts about 'the legal and practical availability of relief to similarly situated parties.' (Corkran and I are old friends, and I participated in an early moot court for her in this case.) She offered the example of when the Trump administration made a midnight attempt to deport Tren de Aragua members to El Salvador. Amanda Frost: The coming assault on birthright citizenship Justices Sonia Sotomayor and Ketanji Brown Jackson were both attracted to an approach along those lines. But several other justices, including Justice Samuel Alito, were skeptical. 'All Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want. Now, on a multimember appellate court, that's restrained by one's colleagues. But the trial judge sitting in the trial judge's courtroom is the monarch of that realm,' Alito said. It's tempting, Alito continued, for him or her to say, 'This is unlawful and I'm going to enjoin it and I'm so convinced I'm right so I'm not going to stay the injunction.' Kagan and Justice Neil Gorsuch both voiced similar concerns. What's likely to happen? As always, predicting Supreme Court decisions from oral argument is treacherous. But the swing justices on the Supreme Court—here, Justices Brett Kavanaugh and Barrett—both signaled that they're looking to rein in universal injunctions. The only question is how hard they'll yank. Sauer did his case no favors by refusing to give an inch on questions pertaining to class certification and the administration's willingness to abide by circuit precedent. Nonetheless, Kavanaugh and Barrett were sympathetic to Sauer's argument that the proper way to get classwide relief is to certify a class, not by pushing for a universal injunction. If they hold to that view, Sauer may get what he asked for: a categorical bar on universal injunctions. That would be a big win for the executive branch. At the same time, some of the justices suggested that supplying complete relief in this case might require an unusually broad injunction. In particular, Barrett hinted that the right approach might be to send the case back down so that a judge could decide whether providing complete relief to New Jersey and the other blue states might support an injunction that covered the whole country. Alternatively, or in addition, the Court may clarify that plaintiffs can secure preliminary relief on behalf of a class even before that class is formally certified. If that were to happen, I'd expect the plaintiffs to promptly get relief on behalf of a very broad putative class. In other words, the Trump administration may win the fight over universal injunctions—but lose the fight over this injunction. That, of course, would leave unresolved the constitutionality of the birthright-citizenship order. It's hard to say how long it will take before that question is squarely presented. Much depends on what the Supreme Court says and what the lower courts do. In the meantime, however, my best guess is that the order will never be allowed to take effect. What will the Supreme Court say when it eventually rules on the merits? On that, it was hard to read the justices as anything but deeply skeptical of the Trump administration's argument. Barring truly extraordinary events, the Court will one day hold that the birthright-citizenship order is unequivocally unconstitutional. The only question is when its obituary will be written.
